During the Bosnian War, and the Bosnian genocide, the violence assumed a gender-targeted form through the use of rape. While men from all ethnic groups committed rape, the great majority of rapes were perpetrated by Bosnian Serb forces of the Army of the Republika Srpska (VRS) and Serb paramilitary units, who used genocidal rape as an instrument of terror as part of their programme of ethnic cleansing.[1][2][3] Estimates of the total number of women raped during the war vary. The European Union estimates a total of 20,000, while the Bosnian Interior Ministry claims 50,000.[4] The UN Commission of Experts identified 1,600 cases of rape, while experts connected to UNHRC provided evidence of 12,000 rapes.[5][6] Other estimates range from 12,000 to 50,000.[7]

Excavation of a mass grave in eastern Bosnia. Civilian men from Foča were executed whilst women were detained and repeatedly raped by members of the Bosnian Serb armed forces.

According to Amnesty International, the use of rape during times of war is not a by-product of conflicts, but a pre-planned and deliberate military strategy.[14] The Rape of Nanking has been described by Adam Jones as "one of the most savage instances of genocidal rape". The violence saw tens of thousands of women gang raped and killed.[15] In the last quarter of a century, the majority of conflicts have shifted from wars between nation states to communal and intrastate civil wars. During these conflicts the use of rape as a weapon against the civilian population by state and non-state actors has become more frequent. Journalists and human rights organizations have documented campaigns of genocidal rape during the conflicts in the Balkans, Sierra Leone, Rwanda, Liberia, Sudan, Uganda, and the Democratic Republic of the Congo. John Y. Lee argues that a similar tribunal to the ICTY be formed to prosecute the Japanese armed forces for their use of "comfort women" during World War II.[16] The strategic aims of these mass rapes are twofold. The first is to instill terror in the civilian population, with the intent to forcibly dislocate them from their property. The second is to reduce the likelihood of return and reconstitution by inflicting humiliation and shame on the targeted population. These effects are strategically important for non-state actors, as it is necessary for them to remove the targeted population from the land. The use of mass rape is well suited for campaigns which involve ethnic cleansing and genocide, as the objective is to destroy or forcefully remove the target population, and ensure they do not return.[17]

The war-torn Sarajevo neighborhood of Grbavica in 1996, a site of rape camps during the Bosnian War and subject of the award-winning film Grbavica.[18]

Historians such as Niall Ferguson have assessed a key factor behind the high-level decision to use mass rape for ethnic cleansing as being misguided nationalism.[19] Prior to 1980, it is widely believed that the lack of ethnic conflict in Yugoslavia was due to nationalism being effectively repressed by Marshal Tito.[20] In 1989 Serbian president, Slobodan Milošević inflamed Serbian nationalist sentiment with the Gazimestan Speech which referred to the Battle of Kosovo.[21][22] Feelings of victimhood and aggression towards Bosniaks were further stirred up with exaggerated tales about the role played by a small number of Bosniaks in the persecution of Serbs during the Ustašegenocide in the 1940s.[23] Serb propaganda suggested that Bosniaks were racially different, typically that they were actually of largely Turkish blood,[24] when in fact DNA tests have shown both groups to share the same gene pool.[25] Despite the Serbian government-led hate campaigns, some Serbs tried to defend Bosniaks from the atrocities and had to be threatened, including instances when troops would announce by loud speaker that "every Serb who protects a Muslim will be killed immediately".[19]

Before the conflict began, Bosniaks in Eastern Bosnia had already begun to be removed from their employment, to be ostracised and to have their freedom of movement curtailed. At the outset of the war, Serb forces began to target the Bosniak civilian population.[26] Once towns and villages were secured, the military, the police, the paramilitaries and, sometimes, even Serb villagers continued these attacks. Bosniak houses and apartments were looted or razed to the ground, the civilian population were rounded up, some were physically abused or murdered during the process. Men and women were separated and then held in concentration camps.[27]

Estimates of the number of women and girls raped range from 12,000 to 50,000, the vast majority of whom were Bosniaks raped by Bosnian Serbs.[6][7] The Serb forces set up "rape camps", where women were subjected to being repeatedly raped, and only released when pregnant.[7] Gang rape and public rapes in front of villagers and neighbors were not uncommon.[28]

On 6 October 1992 the United Nations Security Council established a Commission of Experts chaired by M. Cherif Bassiouni. According to the commission's findings, it was apparent that rape was being used by Serb forces systematically, and had the support of commanders and local authorities.[a] The commission also reported that some perpetrators said they were ordered to rape. Others said that the use of rape was a tactic to make sure the targeted population would not return to the area. The assailants told their victims they would bear a child of the assailant's ethnicity. Pregnant women were detained until it was too late to have the fetus aborted. Victims were told they would be hunted down and killed should they report what had transpired.[30] The commission also concluded that: "Rape has been reported to have been committed by all sides to the conflict. However, the largest number of reported victims have been Bosniaks, and the largest number of alleged perpetrators have been Bosnian Serbs. There are few reports of rape and sexual assault between members of the same ethnic group."[31]

The team of European Community investigators, including Simone Veil and Anne Warburton, similarly concluded in their 1993 report that rape carried out by the Bosnian Serb forces was not a secondary effect of the conflict but part of a systematic policy of ethnic cleansing and was "perpetrated with the conscious intention of demoralizing and terrorizing communities, driving them from their home regions and demonstrating the power of the invading forces".[32]Amnesty International and Helsinki Watch also concluded during the conflict that rape was being used as a weapon of war, with the primary purpose being to cause humiliation, degradation, and intimidation to ensure the survivors would leave and never return.[33][34]

Throughout the conflict, women of all ethnic groups were affected, although not on the scale that the Bosniak population suffered.[6]

Testimony from a survivor of the Kalinovik camp, where roughly 100 women had been detained and subjected to MPR, the rapists continually told their victims, "You are going to have our children. You are going to have our little Chetniks", and that the reason for their being raped was to "plant the seed of Serbs in Bosnia". Women were forced to go full term with their pregnancies and give birth.[35] Many of the reports of the abuses illustrated the ethnic dimension of the rapes.[b]

Over a five-month period between the spring and summer of 1992, between 5,000 and 7,000 Bosniaks and Croats were held in inhumane conditions at Omarska.[42] At the concentration camp, rape, sexual assaults and torture of men and women were commonplace. One newspaper described the events there as "the location of an orgy of killing, mutilation, beating and rape".[43][44] rape murder and physical abuse were commonplace.[45] At the Trnopolje camp an unknown number of women and girls were raped by Bosnian Serb soldiers, police officers and the camp guards.[46] At the Uzamnica camp, one witness in the trial of Oliver Krsmanovic, charged with crimes relating to the Višegrad massacres, claimed that the male detainees were at one time forced to rape women.[47]

Detention camps were set up across the Serb-controlled town of Foča. While kept at one of the town's most notable rape locations, "Karaman's house", Bosniak females, including minors as young as 12, were repeatedly raped.[48] During the trial of Dragoljub Kunarac et al., the conditions of these camps were described as being "intolerably unhygienic", and the head of the police in Foča, Dragan Gagović, was identified as being one of the men who would visit these camps, where he would select women, take them outside, and then rape them.[d]

Women and girls selected by Kunarac, or by his men, were taken to the soldiers' base and raped. At other times, girls were removed from detention centers and kept in various locations for prolonged periods of time under sexual slavery.[50]Radomir Kovač, who was also convicted by the ICTY, personally kept four girls in his apartment, abusing and raping three of them many times, while also allowing acquaintances to rape one of the girls. Prior to selling three of the girls, Kovač appointed two of them to other Serb soldiers who abused them for more than three weeks.[51]

Croat forces set up concentration camps at, Čelebići, Dretelj, Gabela, Rodoč, Kaonik, Vitez, and Žepa.[40] At the Čelebići facility, Serb civilians were subjected to various forms of torture and sexual abuse, including rape.[52] At Dretelj the majority of prisoners were Serbian civilians, who were held in inhumane conditions, while female detainees were raped and told that they would be held until they gave birth to an "Ustaša".[53] Both Serbian and Bosniak civilians were held at the Heliodrom camp in Rodoc, and detainees were reported to have been sexually assaulted.[54]

In Doboj, Bosnian Serb forces separated the females from the men and then facilitated the rape of some women by their own male family members. Women were questioned as to male relatives in the city, and one woman's fourteen-year-old son was forced to rape her."[55] Some writers have expressed skepticism about men's claims to have been forced to rape in such situations, arguing that once their penises became erect, they were active participants in the rape, regardless of other circumstances.[56] These arguments are likely a direct cause of the under reporting of sexual violence by male victims.

Following the end of hostilities with the 1995 Dayton Agreement, there have been sustained efforts to reconcile the opposing factions.[57] Much attention has been paid to the need to understand the reality of what happened during the war, dispel myths, and for responsible leaders to be brought to justice and be encouraged to accept their guilt for the mass rapes and other atrocities.[58]

In the aftermath of the conflict, ethnic identity is now of much greater social importance in Bosnia than it was prior to 1992. From the 1960s until the beginning of the war, nearly twelve percent of marriages were mixed (between members of different communities), and young citizens would often refer to themselves as Bosnians rather than identifying their ethnicity. After the conflict it has been effectively mandatory to be identified as either Bosniak, Serb or Croat and this has been a problem for the children of rape victims as they come of age.[59]

A medical study of 68 Croatian and Bosniak victims of rape during the 1992–1995 war found that many suffered psychological problems as a result. None had any psychiatric history prior to the rapes. After the rapes 25 had suicidal thoughts, 58 suffered depression immediately after and 52 were still suffering from depression at the time of the study, one year later. Of the women 44 had been raped more than once and 21 of them had been raped daily throughout their captivity. Twenty-nine of them had become pregnant and seventeen had an abortion. The study reached the conclusion that the rapes had "deep immediate and long-term consequences on the mental-health" of the women.[60]

In the study entitled "Mass Rape: The War Against Women in Bosnia-Herzegovina", Alexandra Stiglmayer et al. conclude:[61]

In Bosnia-Herzegovina and Croatia, rape has been an instrument of 'ethnic cleansing'. The UN Commission of experts that investigated the rapes in former Yugoslavia has concluded. 'Rape cannot be seen as incidental to the main purpose of the aggression but as serving a strategic purpose in itself,' reports the European Community mission concerned especially with the situation of Bosniak women.The report of the humanitarian organization Amnesty International states: 'Instances that have included sexual infringements against women are apparently part of an inclusive pattern of war conduct characterized by massive intimidation and infringements against Bosniaks and Croats.' The American human rights organization Helsinki Watch believes that rape is being used as a 'weapon of war' in Bosnia-Herzegovina: ' Whether a woman is raped by soldiers in her home or is held in a house with other women and raped over and over again, she is raped with a political purpose – to intimidate, humiliate, and degrade her and others affected by her suffering. The effect of rape is often to ensure that women and their families will flee and never return.' Against this background, it is obvious that rapes in Bosnia-Herzegovina are taking place 'on a large scale' (UN and EC), that they are acquiring a systematic character, and that 'in by far the most instances Muslim (Bosniak) women are the victims of the Serbian forces' (Amnesty International). Estimates of the number of rape victims range from 20,000 (EC) to 50,000 (Bosnian Ministry of the Interior)."

In August 1992 media stories publicized the use of rape as a war strategy,[62] and one of the first to bring it to the world's attention was Newsday correspondent Roy Gutman's programme Mass Rape: Muslims Recall Serb Attacks, which aired on August 23, 1992.[63]

The United Nations Security Council established the ICTY in response to the conflict's human rights violations.[64] Article 5 of the ICTY charter clarified that the tribunal had the power to prosecute war crimes, and the charter specifically condemned rape as a crime, for which people could be indicted.[16]

A Central Intelligence Agency report leaked in 1995 stated that Serb forces were responsible for 90 percent of the atrocities committed during the conflict.[65] A report compiled by a team of experts for the UN, chaired by M. Cherif Bassiouni, reached the same conclusion, calculating that Croat forces were responsible for six percent of the atrocities and Bosniak forces for four percent.[66]

In the early 1990s, calls were made for legal action to be taken over the possibility of genocide having occurred in Bosnia. The ICTY set the precedent that rape in warfare is a form of torture. By 2011, it had indicted 161 people from all ethnic backgrounds for war crimes,[68] and heard evidence from over 4,000 witnesses.[69] In 1993, the ICTY defined rape as a crime against humanity, and also defined rape, sexual slavery, and sexual violence as international crimes which constitute torture and genocide.[70]

Judges from the ICTY ruled during the trial of Dragoljub Kunarac, Radomir Kovač and Milorad Krnojelac that rape had been used by the Bosnian Serb armed forces as an "instrument of terror".[71] Kunarac was sentenced to 28 years' imprisonment for rape, torture and enslaving women.[72] Kovač, who had raped a 12-year-old child and then sold her into slavery,[73] was sentenced to 20 years imprisonment and Krnojelac to 15 years.[74] The ICTY declared that a "hellish orgy of persecution" had occurred in various camps across Bosnia.[71]

In 1997, Radovan Karadžić was sued by Bosniak and Croat women in an American court for genocidal rape. He was tried and convicted in absentia. The female plaintiffs were found to be victims of genocidal rape, and awarded 745 million dollars in damages.[75][76]

On 26 June 1996, the ICTY indicted Dragan Zelenović on seven counts of rape and torture as crimes against humanity, and seven counts of rape and torture as violations of the customs and laws of war. Zelenović initially plead not guilty, but during a hearing on 17 December 2007, the trial chamber accepted a guilty plea on three counts of torture and four counts of rape as crimes against humanity. Zelenović had taken part in the sexual assaults of women at various camps, including the gang rape of a 15-year-old girl and an adult woman. He was given a 15-year sentence for crimes against humanity, which he appealed. The appeal chamber upheld the original sentence.[77]

On 10 March 1997, in what is best known as the Čelebići case, Hazim Delić, Zejnil Delalić, Zdravko Mucić and Esad Landžo were put on trial. They were charged under article 7(1)[e] and article 7(3)[f] of the ICT statutes for violating international humanitarian laws. The offenses occurred in the Bosniak- and Croat-controlled Čelebići prison camp.[80] Delić was found guilty of using rape as torture, which was a breach of the Fourth Geneva Convention and that he had violated the laws and customs of war. The trial chamber also found that Mucić was guilty of crimes carried out while he was commander of the camp, under the principle of command responsibility, these included gender related atrocities.[81]

UN Peace keepers collecting bodies following the Ahmići massacre in April 1993. (Photograph provided courtesy of the ICTY)

On 22 June 1998, Anto Furundžija, who had been apprehended on 18 December 1997 by Dutch forces who were operating with NATO,[82] was put on trial in what was one of the shortest trials heard by the ICTY.[83] This was the first case heard by the ICTY which dealt exclusively with charges for rape. Furundžija was a Bosnian Croat and local commander of the militia known as The Jokers, who took part in the Lašva Valley ethnic cleansing and who were under the command of the Croatian Defence Council. Furundžija was indicted for individual criminal responsibility, which included "committing, planning, instigating, ordering or otherwise aiding and abetting in the planning, preparation or execution of any crimes referred to in articles two and three of the tribunal statute."[84] A single witness, who had been assaulted by Furundžija while he interrogated her, gave the majority of testimony during this trial. She was beaten, and another soldier forced her to have oral and vaginal sex while Furundžija was present. Furundžija did not act to prevent the assault, even though he was in a position of command. His defense counsel argued that the witness was suffering from post traumatic stress disorder and had misidentified the accused.[85] The trial chamber gave Furundžija two sentences of 10 and 8 years to run concurrently having found him guilty under article three, in that he had violated "the laws or customs of war for torture and for outrages upon personal dignity, including rape."[86]

In May 2009, Jadranko Prlić, who had been prime minister of the self-proclaimed Bosnian Croat wartime state of Herzeg-Bosnia, was convicted of murder, rape and expulsion of Bosniaks. He was sentenced to 25 years imprisonment.[87]

According to Margot Wallström, U.N. Special Representative on Sexual Violence in Conflict, only 12 cases out of an estimated 50,000 to 60,000 have been prosecuted as of 2010.[88] By April 2011 the ICTY had indicted 93 men, of these 44 were indicted for crimes related to sexual violence.[89]

On 9 March 2005, the War Crimes Chamber of the Court of Bosnia and Herzegovina, was officially inaugurated.[90] At first this was a hybrid court of international and national judges, by 2009 all judicial actions were handed over to the domestic authorities.[91]

Radovan Stanković was a member of an elite paramilitary unit from Vukovar which was commanded by Pero Elez. Following the death of Elez, Stanković took command of Karaman's house which he ran as a brothel.[92] On 14 November 2006, the domestic court in Sarajevo tried Stanković and he was given a 16-year sentence for forcing women into prostitution. On 26 May 2007, while being transported to hospital Stankovic escaped from custody.[93]

Neđo Samardžić was given a sentence of 13 years and 4 months after he was found guilty of crimes against humanity. He had been indicted on ten counts, four of which he was found guilty of. These included multiple rape, beatings, murder, and forcing women to be sexual slaves. Samardžić was also found guilty of having committed atrocities at Karaman's house.[94] Samardžić appealed and was given 24 years imprisonment having been found guilty on nine of the ten indictments.[95]

Gojko Janković surrendered himself to the authorities in Bosnia in 2005. He was transferred to the Hague for trial but the ICTY sent him back to Bosnia to be tried before the domestic court. He was indicted for the rights violations of, aiding and abetting and issuing orders during an attack on the non-Serbian population which resulted in the killing, and sexual abuse of non-Serbians, the majority of who were Bosniak women and girls. He was given a sentence of 34 years imprisonment having been found guilty.[96]

Dragan Damjanović (24 years in prison) was convicted of war crimes including murder, torture and rape.[97]

Momir Savić was given 18 years imprisonment in July 2009 for crimes he had carried out while a commander of the Serbian armies "Višegrad Brigade". He was convicted for the repeated rape of a Bosniak woman, arson, looting and carrying out executions.[98][99]

On 12 January 2009, Željko Lelek was given 13 years imprisonment for crimes against humanity, which included rape. Lelek, who was a police officer at the time, was convicted for actions he carried out during the Višegrad massacres.[100]

Miodrag Nikačević, a police officer from Foča, was indicted by the domestic court in 2007 for crimes against humanity carried out in 1992. The indictment against him were for two counts of rape. In April 1992, Nikačević, who was in uniform and armed, forcibly robbed and raped one woman. The second charge was for the abuse of and rape of another woman in July 1992 in Foča.[101] During the trial, the defense produced ten witnesses who claimed that Nikačević had not taken part in any war crimes, and had at times risked his own safety to help others.[102] He was found guilty on 19 February 2009 and sentenced to 8 years imprisonment for the rapes of both women, and for aiding and abetting in the abduction and illegal detention of a Bosniak civilian, who was later killed at an undisclosed location.[103] Milorad Krnojelac, Janko Janjić, Dragan Gagović and others were indicted in 1992 for human rights violations committed during the ethnic cleansing of Foča. The indictment included a charge of rape.[104]

Ante Kovač, who was a commander of the military police in the Croat Defence Council, was indicted on 25 March 2008 on war crimes carried out against Bosniaks in the municipality of Vitez in 1993. The charges included allegations of rapes carried out at detention camps in the region.[105] Kovač was cleared on one count of rape but found guilty on another. He was sentenced to 9 years imprisonment.[106]

Veselin Vlahović, also known as "Batko" or the "Monster of Grbavica", was sentenced to 45 years' imprisonment in March 2013, having been found guilty on more than sixty counts, including the murder, rape and torture of Bosniak and Croat civilians during the Siege of Sarajevo.[107] Vlahović's sentence was the longest handed down, slightly longer than that of Sanko Kojić, who—earlier in 2013—had been sentenced to 43 years' imprisonment for his role in the Srebrenica massacre.[108]

Calling the Ghosts is a documentary about a Bosniak woman and a Croat woman, who both survived being raped and tortured at Omarska.[109][110] The film ends with the two women giving testimony at the Hague.[111] The 1998 war filmSavior is about an American mercenary escorting a Serb woman to a UN safe area after she has been raped and impregnated by a Bosniak soldier.[112]Grbavica is a feature film directed by Jasmila Žbanić. It is set in post-war Sarajevo and focuses on Esma, a single mother, and Sara, her daughter, who discovers she is a war baby as her mother had been raped. The film won the 2006 Golden Bear award at the 56th Berlin International Film Festival.[113] Žbanić had also written and directed a short documentary about the war in 2000, titled Red Rubber Boots.[114]I Came to Testify is a documentary by PBS which covers the story of sixteen women who were imprisoned by Serb forces in Foča, and who later testified against their assailants at the ICTY.[115]In the Land of Blood and Honey, directed by Angelina Jolie, also deals with the subject of wartime rape.[116][117]

^"In Bosnia, some of the reported rape and sexual assault cases committed by Serbs, mostly against Muslims, are clearly the result of individual or small group conduct without evidence of command direction or an overall policy. However, many more seem to be a part of an overall pattern whose characteristics include: similarities among practices in non-contiguous geographic areas; simultaneous commission of other international humanitarian law violations; simultaneous military activity; simultaneous activity to displace civilian populations; common elements in the commission of rape, maximizing shame and humiliation to not only the victim, by also the victim's community; and the timing of the rapes. One factor in particular that leads to this conclusion is the large number of rapes which occurred in places of detention. These rape in detention do not appear to be random, and they indicate at least a policy of encouraging rape supported by the deliberate failure of camp commanders and local authorities to exercise command and control over the personnel under their authority."[29]

^"The women knew the rapes would begin when Marš na Drinu was played over the loudspeaker of the main mosque. (Marš na Drinu, or March on the Drina, is reportedly a former Chetnik fighting song that was banned during the Tito years.) While Marš na Drinu was playing, the women were ordered to strip and soldiers entered the homes taking the ones they wanted. The age of women taken ranged from 12 to 60. Frequently the soldiers would seek out mother and daughter combinations. Many of the women were severely beaten during the rapes."[36]

^"At Keraterm camp, a number of guards raped a female inmate on a table in a dark room until she lost consciousness. The next morning she found herself lying in a pool of blood."[38]

^Women were kept in various detention centres where they had to live in intolerably unhygienic conditions, where they were mistreated in many ways including, for many of them, being raped repeatedly. Serb soldiers or policemen would come to these detention centres, select one or more women, take them out and rape them ... All this was done in full view, in complete knowledge and sometimes with the direct involvement of the local authorities, particularly the police forces. The head of Foča police forces, Dragan Gagović, was personally identified as one of the men who came to these detention centres to take women out and rape them.[49]

^"A person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under article 7(1) pursuant to ordering, Ordering with such awareness has to be regarded as accepting that crime."[78]

^"A superior may be held responsible for the crimes of his subordinates, where he (a) failed to prevent the commission of those crimes, know or had reason to know that they would likely be committed, or (b) failed to punish those who committed them."[79]

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